Out of the frying pan and into the fire.

That’s American business right now following the collapse of Chevron deference.

Oh look, an example.

In Frank v. Receivables Performance Management, 2024 WL 3272251 (D. N.J. June 28, 2024) a court just held the use of a prerecorded greeting in an otherwise live call triggers 227(b) of the TCPA–regardless of whether an ATDS was used.

Ok, that probably sounded like gobbledygook to some of you.

Let’s simplify.

The TCPA has two primary provisions. Provisions impacting the use of regulated technology and those impacting marketing calls to numbers on the DNC.

The calls at issue in Frank were debt collection calls. So the DNC was not at issue.

Instead Plaintiff sued claiming regulated technology was used. At first plaintiff claimed Defendant’s dialer–LiveVox HCI–was an ATDS, but eventually gave that up.

So the calls could not be actionable unless they were calls made using a prerecorded or artificial voice.

Pause.

When a prerecorded or artificial voice call is made is a question of great intrigue and import under the TCPA and CFR because not only are such calls regulated from a consent perspective there are also numerous content provisions that apply to such calls. So if a call is a prerecorded voice call it can only be made with the proper level of consent and must contain certain content.

For that reason the FCC–the federal agency that used to be (but might still be) responsible for interpreting the TCPA before Chevron deference was destroyed–has issued thoughtful orders analyzing what is, and is not, a prerecorded voice call.

Unpause.

In Frank the calls at issue were live calls except at the beginning of the call a message played noting that the call was an attempt to collect a debt and to please hold for the next agent.

Pause again.

The Fair Debt Collection Practices Act (FDCPA) governs the conduct of debt collectors–like the Defendant in Frank–and requires disclosure of certain information to a debtor at the outset of every communication (a “Mini-Miranda.”) The Defendant in Frank was using a prerecorded message to advise debtors of their rights, consistent with the FDCPA, presumably so that its human agents wouldn’t screw it up.

Unpause again.

The Court in Frank spent ZERO time analyzing the complex issues of legal interpretation presented by a live call being made with a prerecorded greeting. It simply found–WITHOUT ANY ANALYSIS–that the use of such a greeting DID constitute the use of a prerecorded voice call.

Summary judgment denied.

The end.

Anyone who thinks Chervon is a good thing because it puts statutory interpretation back in the hands of judges “where it belongs” is just not a litigator. Litigators know that judges are busy, they aren’t analyzing every little issue, they are getting to the point and driving to a result.

In Frank the result is legal precedent on a critical issue that should be left to the FCC to fashion a sane rule around. No way would the FCC conclude a prerecorded Mini-Miranda converts an otherwise live informational call into a prerecorded call and triggers the cascade of requirements on such calls. No way.

But that was the ruling in Frank. And, frankly, we need to get used to this sort of thing now.

Big picture take away: if you are using a prerecorded greeting of any kind on an otherwise live outbound call beware. Even a “please hold” or a “this call may be recorded” greeting will convert your call into a prerecorded call in the eyes of some (but hopefully not all) courts.